No. 00-471 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2003 MT 14 

IN RE THE MARRIAGE OF 

JOHN CZAPRANSKI, 

Petitioner and Respondent, 

v. 

JULIE CZAPRANSKI, 

Respondent and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, Cause No. CDR-98-158 

Honorable Thomas Honzel, Judge Presiding 

COUNSEL OF RECORD: 

For Appellant: 

John L. Hollow, Attorney at Law, Helena, Montana 

For Respondent: 

Mark P. Yeshe, Attorney at Law, Helena, Montana 

Jacqueline T. Lenmark, Attorney at Law, Helena, Montana 

(Guardian ad Litem) 

Submitted on Briefs: December 28, 2001 

 Decided: February 11, 2003 

Filed: 

__________________________________________ 

Clerk 
2 

Justice Jim Rice delivered the Opinion of the Court. 

¶1 The Respondent, John Czapranski (John), filed a petition for 

dissolution of his marriage to Appellant, Julie Czapranski (Julie), 

in the First Judicial District Court, Lewis and Clark County, on 

February 26, 1998. Following nine days of trial, the District 

Court entered its Findings of Fact, Conclusions of Law and Decree 

of Dissolution. Julie now appeals the District Court’s Final 

Parenting Plan. We affirm. 

¶2 We address the following issues on appeal: 

¶3 1. Should this Court adopt a heightened standard of review 

when reviewing a district court’s custody decision in a dissolution 

proceeding?

¶4 2. Did the District Court err or otherwise abuse its 

discretion when it ordered in its Final Parenting Plan that John be 

the primary residential parent?

BACKGROUND

¶5 The parties were married on June 5, 1992, in Helena, Montana, 

and have been separated since February 1998. At the time that John 

filed the petition for dissolution, the parties had three children, 

Zachary, born October 3, 1992; John, born October 10, 1994; and 

Jacob, born June 20, 1996. Subsequent to initiating this appeal 

and filing her brief, the parties’ son, Zachary, died while 

competing in the Governor’s Cup race in Helena in June 2001. This 

decision will not, therefore, address matters raised in Julie’s 

brief concerning Zachary. 

¶6 John filed his petition for dissolution on February 26, 1998. 

 On that same day, the District Court entered an ex parte order 
3 

placing the children in the temporary custody of John and giving 

him possession of the family home. The interim parenting plan 

obtained by John also required that Julie’s contact with the 

children be supervised. Also, at the end of February, Julie 

entered into inpatient treatment at St. Patrick’s Hospital in 

Missoula for a period of approximately three weeks. The 

requirement that Julie contact with the children be supervised 

ended in May 1998, and unsupervised visitation continued through 

the time of trial. 

¶7 The District Court conducted a trial over nine days during the 

period of February 1999 through April 1999. It entered its 

Findings of Fact, Conclusions of Law and Final Parenting Plan in 

January 2000. In ordering the Final Parenting Plan, the District 

Court did not follow the recommended plans of Dr. Phillip H. 

Bornstein, Ph.D (Dr. Bornstein), or the guardian ad litem, both of 

whom testified at trial and both of whose plans recommended sharing 

time approximately 50/50, but with different lengths of time with 

each parent. The District Court determined that neither 

recommended plan was in the best interests of the children, but 

rather, concluded that the best interests of the children would be 

served by designating John as the primary parent and granting Julie 

less than 50 percent of time with the children. 

¶8 In so ordering, the District Court concluded that the 

recommended plans demanded cooperation and communication between 

the parties of which they are incapable. The District Court stated 

that, “given the hostility between the parties, neither of the 
4 

recommended plans would provide stability for the children, 

particularly during the school year.” 

¶9 Julie now appeals the District Court’s Final Parenting Plan, 

challenging its appropriateness in light of the recommended plan of 

Dr. Bornstein and the recommend plan of the guardian ad litem and 

challenging the sufficiency of the evidence supporting the 

parenting plan adopted by the District Court. 

STANDARD OF REVIEW

¶10 Because the district court is in a superior position to weigh 

the evidence, we will not overturn the court in child custody 

matters unless we determine that there has been a clear abuse of 

discretion. In re Marriage of Bukacek (1995), 274 Mont. 98, 105, 

907 P.2d 931, 935 (citing In re Marriage of Bolt (1993), 259 Mont. 

54, 58, 854 P.2d 322, 324). When reviewing the court’s 

discretionary decision, we review its findings of fact to determine 

whether they are clearly erroneous. In re Marriage of Fishbaugh, 

2002 MT 175, ¶ 19, 310 Mont. 519, ¶ 19, 52 P.3d 395, ¶ 19 (citing 

In re Marriage of McKenna, 2000 MT 58, ¶ 14, 299 Mont. 13, ¶ 14, 996 P.2d 386, ¶ 14).

¶11 A district court is required to determine child custody 

matters in accordance with the best interests of the child, taking 

into consideration a variety of statutory factors including, but 

not limited to, the parents’ wishes, the interaction and 

interrelationship of the child with the child’s parents, continuity 

and stability of care, and whether the child has frequent and continuing contact with 

both parents. Section 40-4-212(1), MCA; Fishbaugh, ¶ 20. While a court must consider 
5 

the factors enumerated in § 40-4-212(1), MCA, it need not make specific findings 

relating to each. Fishbaugh, ¶ 20 (citing McKenna, ¶ 15).

DISCUSSION

¶12 1. Should this Court adopt a heightened standard of review 

when reviewing a district court’s custody decision in a dissolution 

proceeding?

¶13 Julie argues that the above-stated standard of review should 

be reexamined and heightened, requiring that a district court’s 

discretion be bound by the statutory factors for determining the 

best interests of the children as set forth in § 40-4-212, MCA 

(1997) [currently codified under the same title, chapter and 

section]. That statute provides in part: 

40-4-212. Best interest of child. (1) The court shall determine the 

parenting plan in accordance with the best interest of the child. The court 

shall consider all relevant parenting factors, which may include but are 

not limited to: (a) the wishes of the child's parent or parents; (b) the 

wishes of the child; (c) the interaction and interrelationship of the child 

with the child's parent or parents and siblings and with any other person 

who significantly affects the child's best interest; (d) the child's 

adjustment to home, school, and community; (e) the mental and physical 

health of all individuals involved; (f) physical abuse or threat of physical 

abuse by one parent against the other parent or the child; (g) chemical 

dependency, as defined in 53-24-103, or chemical abuse on the part of either 

parent; (h) continuity and stability of care; (i) developmental needs of the child; 

(j) whether a parent has knowingly failed to pay birth-related costs that the 

parent is able to pay, which is considered to be not in the child's best interests; 

(k) whether a parent has knowingly failed to financially support a child that the 

parent is able to support, which is considered to be not in the child's best 

interests; (l) whether the child has frequent and continuing contact with both 

parents, which is considered to be in the child's best interests unless the court 

determines, after a hearing, that contact with a parent would be detrimental to 

the child's best interests. In making that determination, the court shall consider 

evidence of physical abuse or threat of physical abuse by one parent against the 

other parent or the child, including but not limited to whether a parent or other 

person residing in that parent's household has been convicted of any of the 

crimes enumerated in 40-4-219(8)(b). 
6 

¶14 Julie argues that this Court should adopt a standard of review 

that would focus the analysis of a district court, requiring the 

court to make specific findings pertaining to each factor listed in 

the statute, findings regarding the developmental needs of the 

children and findings regarding how the court-adopted plan meets 

those needs, especially in light of any expert testimony or 

proposed parenting plans submitted by experts. She states: 

For instance, where case specific, expert testimony was 

given regarding the needs of the children, it should be 

incumbent upon the trial Court to refer to the evidence 

of the needs of the children, to refer to any evidence 

that rebuts those as being the needs of the children, and 

to state the reasons why the Court disregarded those 

needs or thought its plan addressed those needs. 

Citing In re Marriage of Brown (1978), 179 Mont. 417, 587 P.2d 361, 

Julie contends that this Court’s standard of review should require 

a district court’s findings to include evidence as to the 

children’s wishes and any reasons why a court adopted a Final 

Parenting Plan that may be inconsistent with those wishes. 

¶15 Citing a number of parent-child termination cases, Julie 

contends that this Court uses a higher standard of review in 

termination cases, requiring that a party seeking to terminate 

parenting rights has a burden of proving by clear and convincing 

evidence each of the statutory criteria. See, e.g., In re Custody 

and Parental Rights of D.T., 2002 MT 232, ¶ 10, 311 Mont. 463, ¶ 

10, 56 P.3d 859, ¶ 10 (“[t]he party seeking to terminate an 
7 

individual’s parental rights has the burden of proving by clear and 

convincing evidence that the statutory criteria for termination 

have been met”) (citation omitted). Julie questions that, if this 

is true, “why should this Court’s standard of review permit a 

District Court in a parenting plan proceeding specifically [sic] 

address few or no criteria in MCA Section 40-4-212, and still be 

upheld.” 

¶16 John responds that the standard of review is higher in 

termination cases because of the impact upon the parent-child 

relationship and contends that the District Court in this case 

cannot be held in error for following the law as it has been 

consistently proclaimed by the Supreme Court. 

¶17 The arguments proffered by each party in this matter reveal a 

basic misunderstanding of this Court’s standard of review on appeal 

as opposed to the burden of proof incumbent upon a party in the 

district court by which the fact-finder must view and weigh the 

evidence. Contrary to the parties’ assumptions and arguments, this 

Court has not adopted a higher standard of review in parent-child 

termination cases. 

¶18 The requirement in a parent-child termination case that each 

statutory criteria be proven by clear and convincing evidence is 

not our standard of review on appeal, but rather, it is the burden 

of proof incumbent on the party seeking to terminate parenting 

rights in the district court. See In re A.C., 2001 MT 126, ¶ 36, 

305 Mont. 404, ¶ 36, 27 P.3d 960, ¶ 36 (clarifying this Court’s 

standard of review in parental termination cases). Although many 
8 

states utilized this burden of proof in the district court prior to 

1982, the “clear and convincing” burden was first adopted by the 

United States Supreme Court in Santosky v. Kramer (1982), 455 U.S. 745, 102 

S.Ct. 1388, 71 L.Ed.2d 599, and first adopted by this Court in Matter of J.L.B. (1979), 182 

Mont. 100, 116-17, 594 P.2d 1127, 1136. 

¶19 Our standard of review on appeal, however, is distinctly 

different. Because a district court’s decision to terminate 

parental rights is discretionary, this Court reviews a district 

court’s decision to determine whether the court abused its 

discretion. In re Custody and Parental Rights of D.T., 2002 MT 232, ¶ 9, 311 Mont. 

463, ¶ 9, 56 P.3d 859, ¶ 9 (citing In re J.W., 2001 MT 86, ¶ 7, 305 Mont. 149, ¶ 7, 23 P.3d 

916, ¶ 7). When reviewing a district court’s discretionary decision, this Court further 

determines whether a district court’s findings of fact supporting termination are clearly 

erroneous and we review the district court’s conclusions of law to determine whether they are 

correct. In re Custody and Parental Rights of D.T, ¶ 9 (citation omitted). The argument 

that this Court ought to adopt a higher standard of review in custody cases to be consistent 

with our standard of review in parent-child termination cases is, therefore, misguided. 

¶20 We conclude that Julie’s reliance on In re Marriage of Brown

is likewise misguided. This Court decided Brown in 1978 when 

Montana law still provided that it was presumptively in the best 

interests of the children for the mother to be granted custody of 

children of “tender years.” See In re Marriage of Tweeten (1977), 

172 Mont. 404, 409, 563 P.2d 1141, 1144. Although the presumption 
9 

existed when Brown was decided, this Court in Brown, relying upon 

Tweeten, recognized the presumption favoring the mother in 

custodial matters was not necessarily conclusive and that each case 

should be decided on its own facts without the use of “controlling 

or conclusive presumptions.” Tweeten, 172 Mont. at 409, 563 P.2d 

at 1144. 

¶21 However, because the presumption did exist in Montana law, the 

parties were required to proceed from that presumption and a burden 

of proof was imposed requiring a party to rebut the presumption by 

a preponderance of the evidence. Brown, 179 Mont. at 425, 587 P.2d 

at 366. If a district court resolved the custodial matter contrary 

to the statutory presumptions, specific findings were required 

showing that one party successfully rebutted the presumption. 

Absent these specific findings, even where review of the entire 

findings made it clear that the district court considered the 

presumption to have been overcome, a district court’s decision 

required remand. As this Court stated in Brown: 

Our review of the District Court’s findings . . . 

convinces this Court the District Court considered the 

presumption to have been overcome and found the [father] 

to be the better person for custody. If the District 

Court’s findings were complete, we would affirm the 

custody portion of its judgment. 

Brown, 179 Mont. at 425, 587 P.2d at 366. Montana’s statutory 

scheme at the time of Brown thus required a district court to make 
10 

specific findings relevant to overcoming the statutory presumption 

by the proper burden of proof. 

¶22 Neither Montana’s current scheme nor the scheme in effect at 

the time of this case contain a presumption favoring the mother as 

a custodial parent, and there is thus no requirement that a court 

include specific findings demonstrating rebuttal of the 

presumption. For example, in Markegard v. Markegard (1980), 189 Mont. 374, 616 

P.2d 323, acknowledging that the presumption that the mother is entitled to custody of a 

child of tender years was no longer statutory, this Court stated that the presumption should 

not exist in the absence of a particular statute so declaring. 

We do not believe that there is a sound theory or rationale in support of a 

judicial declaration that such a presumption exists. We further believe that this 

presumption is outdated in light of the enactment of the Uniform Marriage and 

Divorce Act in this state. The presumption serves only to confuse the parties 

and to burden the courts. For this reason, we overrule Tweeten with respect to 

the tender years presumption. 

Markegard, 189 Mont. at 377, 616 P.2d at 325; accord Bier v. Sherrard (1981), 191 Mont. 

215, 220, 623 P.2d 550, 552-53 (concluding that the district court was correct in not making 

a finding as to a statutory preference for the mother as custodian). This Court’s decision in 

Brown, therefore, does not require that a district court include specific findings regarding the 

custodial wishes of the children as evidence to rebut the tender years presumption. 
11 

¶23 Additionally, at the time this Court decided Brown, Section 

48-334(1), R.C.M. 1947, made it discretionary for a district court 

to conduct an interview of the children to ascertain their 

custodial wishes. If a court conducted an interview with the child 

or children to determine their wishes, the statute required that 

the court cause the interview to be part of the record by making a 

specific finding stating the wishes of the child or children. 

Brown, 179 Mont. at 425-26, 587 P.2d at 366 (citing In re Marriage 

of Kramer (1978), 177 Mont. 61, 580 P.2d 439). Specific findings 

were required, however, only after a district court exercised its 

discretion to conduct an interview with the child or children. The 

district courts in both Brown and Kramer conducted in-chamber 

interviews with the children and failed to record its findings, 

requiring remand to conform to the mandate of the statute. Brown, 

179 Mont. at 420, 587 P.2d at 363; Kramer, 177 Mont. at 69, 580 

P.2d at 443. 

¶24 Likewise, § 40-4-214(1), MCA (1997), granted the District 

Court in this case similar discretion while including a similar 

mandate: 

The court may interview the child in chambers to 

ascertain the child’s wishes as to residence and parental 

contact. The court may permit counsel to be present at 

the interview. The court shall cause a record of the 

interview to be made and to be part of the record in the 

case. 
12 

The District Court, in its discretion, did not conduct such an 

interview and was, therefore, not required by statute to cause a 

record of the interview to be made. This Court’s decision in 

Brown, therefore, does not support Julie’s argument that it must 

make specific findings as to the wishes of the child or children in 

all custody determinations, nor does it support adoption of a 

heightened standard of review. 

¶25 We likewise find Julie’s reliance on In re Custody of J.C.O., 

1999 MT 325, 297 Mont. 327, 993 P.2d 667, and Montana Environmental 

Information Center, Inc. v. Montana Dept. of Transportation, 2000 

MT 5, 298 Mont. 1, 994 P.2d 676 (MEIC), to be unpersuasive. 

Justice Nelson’s concern in his special concurrence in Custody of 

J.C.O. was that, without guidelines for a district court in 

applying the best interest standard to the question of which 

parent’s surname a child should bear, the court may be influenced 

by a paternalistic notion prevalent in our society that, all things 

being equal, a child should bear the surname of its father. 

Custody of J.C.O., ¶¶ 15-16. Julie suggests that, without 

narrowing a district court’s analysis as suggested in Justice 

Nelson’s special concurrence in Custody of J.C.O., the current 

statutory criteria, nominally applied, “meets [sic] out subtle 

discrimination against the children’s need to have an independent 

and meaningful relationship with both parents.” Julie, however, 

does not set forth any suggested presumptions that she believes 

holds sway over a district court directing its consideration away 

from the needs of the children. 
13 

¶26 The only evidence offered by Julie to support this alleged 

preference by a district court for something other than the 

children’s needs, or preference by a court for something other than 

allowing the children an independent and meaningful relationship 

with both parents, is that the District Court in this matter did 

not adopt the parenting plan submitted by Dr. Bornstein nor did it 

enter specific findings as to why it did not adopt Dr. Bornstein’s 

plan. We fail to understand how a district court’s action of not 

adopting a particular expert’s parenting plan is an example of a 

preference or presumption in favor of something other than the 

children’s needs, and Julie does not suggest a preference or 

presumption against the children’s needs, either legal or societal, 

that this Court need guard against. As noted, this Court has 

explicitly rejected the tender years presumption favoring the 

mother. Markegard, 189 Mont. at 377, 616 P.2d at 325; Bier v. Sherrard, 191 Mont. at 

220, 623 P.2d at 553. 

¶27 Rather, Julie’s argument that the District Court should be 

required to enter more specific findings regarding the 

developmental needs of the children is more appropriately 

interpreted as expressing a difference with the District Court 

regarding how much weight the expert testimony of Dr. Bornstein, as 

well as his suggested parenting plan, should be given. Julie’s 

argument is not, however, relevant to this Court’s standard of 

review of a district court’s custody determinations. 
14 

¶28 In MEIC, we utilized an arbitrary and capricious standard of 

review in considering whether the Montana Department of 

Transportation (Department) correctly determined that it need not 

prepare a supplemental Environmental Impact Statement in 1997 for 

the proposed Forestvale Interchange along Interstate 15 in Helena. 

MEIC, ¶ 12. However, this Court’s “arbitrary and capricious” 

standard of review for agency determinations is inapplicable to 

custody determinations. 

¶29 Furthermore, Julie incorrectly contends that this Court in 

MEIC reversed the district court “based in part on the District 

Court not discussing the reevaluation of the proposed 

alternatives,” thus implying that its findings insufficiently 

evaluated the evidence. Rather, the District Court in MEIC

reviewed the Department’s decision under the same “arbitrary and 

capricious” standard of review utilized by this Court. Thus, 

notwithstanding our disagreement with, and reversal of, the 

District Court’s decision in MEIC, we conclude that Julie’s 

reliance on MEIC in urging this Court to adopt a heightened 

standard of review is unpersuasive. 

¶30 Based on the foregoing, we conclude that this Court’s current 

standard of review remains appropriate when reviewing a district 

court’s custody determinations and adoption of parenting plans in 

dissolution matters. 

¶31 Did the District Court err or otherwise abuse its discretion 

when it ordered in its Final Parenting Plan that John be the 

primary residential parent?
15 

¶32 Julie contends that the District Court’s findings were not 

properly or sufficiently focused and that its ultimate custody 

decision was not supported by substantial evidence. Arguing from 

the framework of her suggested heightened standard of review, Julie 

contends that the District Court had before it substantial evidence 

relevant to numerous best interest factors under § 40-4-212, MCA 

(1997), and that the District Court should be required to enter 

findings on each factor where substantial evidence existed to 

support a finding. Specifically, Julie argues that, while there 

was ample evidence of the developmental needs of the children, the 

wishes of the children, the lack of any chemical dependency on her 

part as well evidence of her current good health, and that Julie 

had selected a home that allowed her easy access to the children at 

school, the District Court failed to make any specific finding on 

the basis of this evidence prior to awarding primary custody to 

John. 

¶33 Since many of our prior decisions relied on by Julie are not 

necessarily consistent with the statutory scheme in effect during 

the custody dispute between Julie and John, it is appropriate to 

review those cases in light of the statutes in effect at the time, 

and subsequently, to review the sufficiency of the evidence in 

support of the District Court’s judgment. 

¶34 Julie relies on this Court’s decision in In re Marriage of 

Stephenson (1988), 230 Mont. 439, 750 P.2d 1073, for the 

proposition that it is reversible error for a district court to 

fail to enter specific findings regarding the factors in § 40-4-
16 

212, MCA, when determining the best interest of the children in 

custody decisions. Stephenson was decided under Montana’s 

modification statute rather than the best interest statute and 

involved the termination of an already existing joint custody 

arrangement. The modification statute, § 40-4-219, MCA (1987), 

mandated that the lower court enter specific findings supporting 

any modification that terminated a joint custody arrangement. 

Stephenson, 230 Mont. at 445, 750 P.2d at 1077 (“where modification 

equates to termination of the joint custody, the lower court should 

proceed according to the requirements of § 40-4-219, MCA”) (citing 

In re the Marriage of Gahm (1986), 222 Mont. 300, 302, 722 P.2d 

1138, 1140). 

¶35 The lower court terminated joint custody based upon the 

“endangerment” provision of the modification statute, but did not 

enter the specific findings mandated under subsection (1)(c) of § 

40-4-219, MCA, which specifically required findings regarding “the 

child’s present environment” as well as whether “the harm likely to 

be caused by a change in the environment was outweighed by its 

advantages to [the child].” Stephenson, 230 Mont. at 444, 750 P.2d 

at 1075 (emphasis added). The lower court’s findings were based 

upon evidence provided long prior to the hearing date, evidence 

that did not support findings regarding the mother’s present 

environment. Stephenson, 230 Mont. at 447, 750 P.2d at 1078. 

Although the district court’s decision whether to modify an early 

custody determination was discretionary, and thus, reviewed for 

abuse of discretion, its modification, based on insufficient 
17 

findings and insufficient evidence, constituted an abuse of 

discretion. See Stephenson, 230 Mont at. 447, 750 P.2d at 1078. 

¶36 Additionally, when Stephenson was decided, Montana statute 

contained a presumption that joint custody was in the best interest 

of the child or children. See § 40-4-222, MCA (1987) (now 

repealed). The party requesting termination of joint custody thus 

carried a heavy burden and a district court’s decision to the 

contrary needed to be based on substantial evidence and demonstrate 

consideration that the presumption had been rebutted. “[T]he party 

requesting modification under § 40-4-219, MCA, bears a heavy burden 

because the statute’s policy is to ‘preserve stability and 

continuity of custody for the children.’” Stephenson, 230 Mont. at 

447, 750 P.2d at 1078 (citation omitted). 

¶37 Stephenson is inapplicable to the instant situation where 

Montana’s statutory scheme no longer contains a presumption in 

favor of joint custody and where the best interest statute, as 

opposed to the custody modification statute, contains permissive 

factors that a district court may or may not consider on a case-bycase basis when making initial custody determinations. See In re 

Marriage of Bukacek (1995), 274 Mont. 98, 106, 907 P.2d 931, 936 

(noting that although the best interests statute lists several 

relevant factors that the district court must consider, the court 

is not required to make specific findings which address each 

factor, but must set forth the “essential and determining” factors 

on which its determination is based). 
18 

¶38 Julie next relies on In re the Custody of D.M.G., 1998 MT 1, 

287 Mont. 120, 951 P.2d 1377, for the proposition that it is 

reversible error for a district court not to elicit or require 

case-specific testimony regarding the needs of the children. In 

Custody of D.M.G., this Court did not adopt such a rule nor is the 

suggested rule supported by In re Marriage of Abrahamson (1996), 

278 Mont. 336, 924 P.2d 1334, or In re Marriage of Tade (1997), 282 

Mont. 449, 938 P.2d 673, the two cases relied on by this Court in 

deciding Custody of D.M.G. 

¶39 In both Abrahamson and Tade, the district court modified joint 

custody provisions of the parties’ dissolution decrees, 

effectively terminating joint custody and awarding residential 

custody to the parent who had not provided the primary care during 

the children’s lives. Both cases involved the application of § 40-

4-212(3)(a), MCA (1995) (now repealed), which stated that 

“[c]ustody should be granted to the parent who has provided most of 

the primary care during the child’s life.” We affirmed the 

district courts in both cases based on the presence of casespecific evidence in the record that rebutted the statutory 

presumption and supported the courts’ decisions to terminate joint 

custody. See Abrahamson, 278 Mont. at 343, 924 P.2d at 1338; Tade, 

282 Mont. at 452-53, 938 P.2d at 675. 

¶40 We reversed the district court in Custody of D.M.G., not 

because the district court failed to elicit case-specific testimony 

regarding the needs of the children, but because the district court 

terminated joint custody in the absence of case-specific testimony 
19 

in the record rebutting the statutory presumption for joint 

custody. Custody of D.M.G., ¶ 40. The rule to be gleaned 

therefrom, was not that district courts were thensforth required to 

elicit testimony relevant to the needs of the children, but that a 

custody determination contrary to the statutory presumption in § 

40-4-212(3)(a), MCA (1995), would not stand in the absence of such 

case-specific testimony. We therefore find Julie’s reliance on 

Custody of D.M.G. unpersuasive. 

¶41 Julie next returns to the parent-child termination statutes 

and, citing to this Court’s decision in In the Matter of M.A.E., 

1999 MT 341, ¶ 18, 297 Mont. 434, ¶ 18, 991 P.2d 972, ¶ 18, argues 

that to protect and preserve a natural parent’s rights and 

fundamental liberty interests to care and custody of a child, a 

parent’s right must be protected by fundamentally fair procedures. 

 Julie contends that the procedures for deciding custody decisions 

in dissolution matters should mirror the procedures for deciding 

termination cases, arguing that a district court making a custody 

determination should be required to “address relevant individual 

criteria of the statute, at least the needs and wishes of the 

children, the parents’ present ability to meet those needs, and the 

reasons supported by the record that the plan adopted by the Court 

meets those needs.” 

¶42 This Court previously discussed the variety of statutory 

schemes pertaining to custody of children and termination of 

parental rights, noting that Montana has at least five such 

statutory schemes relevant to different types of situations. See 
20 

Girard v. Williams, 1998 MT 231, 291 Mont. 49, 966 P.2d 1155. In 

Girard we noted that “although there is a degree of similarity as 

to general subject matter, each statutory scheme has specific 

purposes and procedures which must be followed to ensure that a 

judgment or order in a given case is valid.” Girard, ¶ 17; also 

see Matter of Guardianship of Aschenbrenner (1979), 182 Mont. 540, 

553, 597 P.2d 1156, 1164 (noting that to protect the fundamental 

rights and relationship existing between parent and child, district 

courts must identify and adhere to the proper procedure and 

standards to be used in the proceedings before them). 

¶43 The constitutional implications of terminating parental rights 

are severe, and the statutory scheme for terminating the parentchild relationship reflects the high burden of proof required by 

the party attempting to terminate the relationship and further 

require a specific finding, by clear and convincing evidence, of 

abuse and neglect. Section 41-3-609, MCA. A custody proceeding, 

however, is not so harsh as a termination proceeding and does not 

share the same constitutional implications, and neither do the 

custody statutes require such a steep burden of proof. Thus, the 

best interest statute, § 40-4-212, MCA, requires that a district 

court “shall” determine the parenting plan in accordance with the 

best interest of the child or children by considering all relevant 

factors which “may include but are not limited to” the factors 

listed in the statute. The factors which are relevant, however, 

may be different on a case-by-case basis and, thus, may be 

different for each custody determination. 
21 

¶44 We conclude that, in light of the statutory scheme for making 

custody determinations in dissolution proceedings, it would be 

inappropriate to arbitrarily require that one or two factors be 

more heavily considered than the other permissive, non-exclusive 

factors contained in the best interest statute, § 40-4-212, MCA. 

Each custody determination must be decided on a case-by-case basis 

and different factors will be relevant in making such 

determinations. It would thus be inappropriate, especially in 

light of the fact that the factors listed in § 40-4-212, MCA, are 

permissive and non-exclusive, to require a district court to 

analyze custody determinations in a similar manner as required by 

the statutory scheme for terminating a parent’s rights. 

¶45 Having determined that this Court’s standard of review is 

appropriate and that a district court is not required to heavily 

weigh any best interest factor above another, we now turn to 

Julie’s challenge that the District Court’s custody determination 

is not supported by sufficient evidence. 

¶46 The District Court determined that neither the parenting plan 

of Dr. Bornstein nor the parenting plan offered by the guardian ad 

litem, both of which offered shared custody arrangements, were in 

the best interests of the children. The District Court concluded 

that the parties would not be able to cooperate and communicate 

with each other regarding the best needs of the children due to 

their mutual hostility, and thus concluded that neither recommended 

plan provided stability for the children, particularly during the 

school year. 
22 

¶47 Julie contends that there existed no evidence that the 

children needed to be in one home during the school year nor any 

evidence that anything other than shared parenting is in the best 

interests of the children, and that, to the extent that the 

District Court relied upon this general notion of the need for 

stability during the school year, it erred. Additionally, as 

previously mentioned, Julie argues that the District Court failed 

to address substantial evidence before it, including expert 

testimony regarding the developmental needs of the children and 

Julie’s lack of chemical dependency and change of residence to be 

closer to the children’s school. 

¶48 As previously noted in our standard of review, a district 

court’s custody determination is a discretionary decision, and this 

Court will not disturb the decision when it is supported by 

substantial evidence. In re Marriage of Bukacek (1995), 274 Mont. 

98, 105, 907 P.2d 931, 935 (citing In re Marriage of Bolt (1993), 

259 Mont. 54, 58, 854 P.2d 322, 324). While a district court must 

consider the best interest factors enumerated in § 40-4-212(1), MCA, it need not make 

specific findings relating to each. Fishbaugh, ¶ 20 (citing McKenna, ¶ 15); see also 

Bukacek, 274 Mont. at 106, 907 P.2d at 936 (noting that a district court is not required to 

make specific findings which address each factor, but it must set forth the “essential and 

determining” factors on which its determination is based). 

¶49 In In re Marriage of Tahija (1992), 253 Mont. 505, 833 P.2d 

1095, this Court affirmed the district court’s joint custody 
23 

determination even though it erred in finding that the parties 

accepted and agreed upon a joint custody arrangement, stated no 

reasons for adopting one plan over another, and did not address 

numerous issues raised by the father at trial. Tahija, 253 Mont. 

at 507-08, 833 P.2d at 1096. Citing to In re Marriage of B.H.J.

(1988), 233 Mont. 461, 463, 760 P.2d 753, 754, we stated that “this 

Court will not disturb a visitation schedule ordered by the 

District Court when it is supported by substantial credible 

evidence.” Tahija, 253 Mont. at 507, 833 P.2d at 1096. “While the 

District Court erred in finding the visitation plan was adopted and 

accepted by both parties, its adoption of [the mother’s] proposed 

plan was within its discretion.” Tahija, 253 Mont. at 508, 833 

P.2d at 1096. 

¶50 Likewise, the District Court in the instant case was not 

required to address every issue raised at trial by Julie nor to 

address in specific detail all of the evidence submitted. Its 

decision will be upheld if it is supported by substantial evidence 

and if its findings set forth the essential and determining factors 

for its custody determination. 

¶51 In its Conclusion of Law # 3, the District Court concludes 

that: 

Although the children love both parents and are attached 

to them, the Court concludes that a shared custody 

arrangement, whether it be on a two-week/two-week or sixmonth/six-month basis, is not in the best interests of 

the children. Any such plan demands that the parents 

cooperate with each other and be able to communicate with 

each other regarding the needs of the children. The 

parties, however, are not capable of doing this. 

Furthermore, given the hostility between the parties, 

neither of the recommended plans would provide stability 

for the children, particularly during the school year. 
24 

¶52 In its findings of fact, the District Court set forth the 

findings upon which its custody decision is based. The court found 

that Julie had a history of substance abuse prior to the marriage 

and that, although maintaining sobriety through much of the 

marriage, she began using marijuana again in the Fall of 1997 and 

used it fairly regularly after that. The court also found that 

Julie threatened to kill herself on a number of occasions and was 

hospitalized in the support center at St. Peter’s Hospital for 

suicidal ideation and depression in January 1998 and later, in 

March 1998, underwent inpatient chemical dependency treatment at 

St. Patrick’s Hospital in Missoula. Following her inpatient care, 

she began counseling in May 1998, and her counselor at that time 

believed that Julie had stabilized herself and was no longer at 

risk of committing suicide. At trial, Dr. Bornstein agreed that 

Julie was no longer a risk to herself. 

¶53 The District Court found that there was a great deal of 

hostility between the parties during transfers of the children, due 

primarily to the fact that during the transfers, Julie had made 

inappropriate accusations, had used vulgar language, and has had 

inappropriate physical contact with both John and another person, 

usually while the children were present. 

¶54 The District Court further found that Julie engaged in highly 

inappropriate conduct on a number of occasions during trial, 

including sarcastic comments while John was testifying and running 

from the courtroom and making vulgar comments while John’s sister 

was testifying. 
25 

¶55 The District Court further states in its findings that it 

considered the custody recommendations of the guardian ad litem as 

well as the guardian’s recommendation that Julie complete a course 

for victims of domestic violence and in anger management and 

provide evidence of her continued sobriety, regular attendance of 

AA meetings and continuing therapy. 

¶56 Regarding the expert testimony of Dr. Bornstein and his 

recommended parenting plan, the District Court noted that the 

recommended plan was premised on the condition that Julie remain 

faithful to her recovery program, including following all the 

recommendations made as part of her discharge from St. Patrick’s 

Hospital. 

¶57 The above findings, although not discussing whether Julie was 

or was not successful in complying with the recommendations of Dr. 

Bornstein, and thus, not a model of completeness, nonetheless set 

forth the essential and determining factors that the District Court 

used in making a custody determination that it deemed to be in the 

best interests of the children. The record reflects that Dr. 

Bornstein did not believe that his recommended parenting plan was 

the only plan that would serve the best interests of the children: 

[B]elieve it or not, the plan is not all that important. 

 I truly believe that there are a wealth of plans that 

can be implemented that will serve the best interests of 

the children . . . . So it’s not as if I’m here today 

solely wedded to the plan that we proposed. 

When the District Court inquired of Dr. Bornstein whether he 

believed that the children needed a “base of operation” while in 

school, Dr. Bornstein responded: 
26 

The only point I would add is I tend to agree, children 

need a base of operations and provide [sic] some sense of 

security. But there’s no evidence to indicate that they 

fare poorly when they have two bases of operations, when 

they do a classic mom’s house, dad’s house. 

¶58 Upon review of the record, we find that the District Court’s 

findings are supported by substantial evidence and are, therefore, 

not clearly erroneous. The findings themselves, although not a 

model of completeness, set forth the essential and determining 

factors upon which the District Court based its custody 

determination. The District Court considered the children’s 

adjustment to home and school, the mental health and history of 

chemical dependency of Julie, the continuity and stability of care 

and the interaction and interrelationship of the parents and the 

effect that this interaction has had on the children. 

¶59 As the District Court’s findings are supported by substantial 

credible evidence and the findings include the essential and 

determining factors on which its custody determination is based, we 

conclude that the Court did not abuse its discretion in awarding 

primary custody to John. 

¶60 The decision of the District Court is affirmed accordingly. 

/S/ JIM RICE 

We concur: 

/S/ KARLA M. GRAY 

/S/ JAMES C. NELSON 

/S/ TERRY N. TRIEWEILER 

/S/ JIM REGNIER